JUDGMENT Mr. K. Kannan J.: (Oral) - The following substantial question of law arises for consideration in the second appeal:- 1. Whether the courts below were in error in dismissing the suit, failing to notice that the alleged misuse/theft of energy had not been established by the defendant to justify a penal levy of electricity consumption charges? 2. The plaintiff, who lost in both the Courts below, is before this Court complaining that a theft of energy attributed to him was not established and the Courts below failed to notice that a penal levy could not have been effected without going through a process laid down under law. 3. The case of the plaintiff was that he was running a hotel business in partnership with two electricity connections A/c No.9750 and 9751. At the relevant time of inspection said to have been made on 27.08.1983, it was alleged to have been found that the meters were not working and the plaintiff was committing a theft of energy by taking electricity directly from the municipal mains. When the defendant assessed 3954 units as having been consumed on the basis of likely consumption of 16 lamps, 8 tubes, 16 fans and a water pump, the plaintiff filed the suit contending that the levy was arbitrary. 4. The Courts below relied on evidence of DW-1, who was said to have made the inspection and the evidence of other persons namely the Lineman and one Sealer. The Court held that during the course of trial, the defendant had called upon the plaintiff to produce account book to show the nature of occupancy and the likely power consumption that was possible from such premises but the document was not filed. The Court drew an adverse inference on non production of the documents that could have shown the electricity connection and held that the theft had been established and the plaintiff suit was liable to be dismissed. The trial Court judgment was upheld in the Appellate Court as well. 5. Learned counsel appearing on behalf of the appellant points out to me that Section 39 of the Indian Electricity Act, 1910 contains provision with reference to theft of energy and the manner of liability that would arise for such theft under Section 44. The cause of action for the suit was the issuance of notice under Ex.DW1/1. 5. Learned counsel appearing on behalf of the appellant points out to me that Section 39 of the Indian Electricity Act, 1910 contains provision with reference to theft of energy and the manner of liability that would arise for such theft under Section 44. The cause of action for the suit was the issuance of notice under Ex.DW1/1. It refers to a report of inspection carried out on 27.08.1983. It states that during checking rounds it was detected that the consumer was using the electricity from the distribution mains and that the consumer was a habitual pilferer of energy. It also states that the petitioner had consented to pay the necessary charges. The report makes a reference to lamps, tubes, fans and water pump and estimates the likely units that could have been consumed. If it was a case of theft and the plaintiff had been guilty of such theft, an assessment ought to be in the first place provisional with a show cause notice given to him as to why penalty shall not be levied. Rules of natural justice have to be read into every administrative action that has a consequence of penalty and an increased levy. If there had been a case of theft or misuse of energy, there could be no doubt that Municipal Committee which was in charge of the electric installations was empowered to impose penalty and recover the same. But that should happen only by allowing the consumer to participate in any decision making by offering to the consumer an opportunity to explain why a penal levy could not be imposed. It cannot be merely a matter of a decision by an authority on its own subjective satisfaction that there had been a theft of energy. Learned counsel appearing on behalf of the appellant points out to a judgment of the Supreme Court in Ram Chandra Prasad Sharma and others Vs. State of Bihar and another AIR 1967 SC 349 that dealt with a case of dishonest abstraction of energy under Section 39 of the Electricity Act. The Court was dealing with a criminal prosecution which had been levied against a consumer, who was attributed with an unlawful abstraction of energy. State of Bihar and another AIR 1967 SC 349 that dealt with a case of dishonest abstraction of energy under Section 39 of the Electricity Act. The Court was dealing with a criminal prosecution which had been levied against a consumer, who was attributed with an unlawful abstraction of energy. In that context, the Court held that before raising a presumption under Section 39 that there had been a dishonest abstraction, the use of perfected artificial means which would render abstraction of energy possible have to be established. It was further necessary to show that there was a dishonest abstracted consumption or use of electric energy by the accused person. The Court was actually dealing with a criminal prosecution and the method of proof but I would not still discard it as wholly unnecessary for our purpose at least to find that the department had allowed for the consumer to take an objection of what was stated. Learned counsel for the respondent states that the plaintiff must have himself resorted to an objection under the relevant Rules. I have not been shown through any particular provision which would compel a party to challenge it only before the department before coming to Court. Assuming that such rule exists, the exclusion of jurisdiction of a Civil Court will not be readily inferred and if there was a challenge to demand on the ground of violation of natural justice then a Civil Court will always have a right to examine whether the principles of natural justice had been followed. With no form of enquiry before imposing a penal levy and without giving an opportunity to the consumer to show cause as to why the plaintiff shall not be proceeded with for alleged theft of energy, it was not possible to sustain the demand made by suit. I will accord to the plaintiff the benefit of a favourable consideration by the only fact that the demand made was unilateral and without being preceded by any form of enquiry. I set aside the judgment of the Courts below and find on a substantial question raised that the demand could not be made without proof of theft and involving the plaintiff in an enquiry before such an action is taken by issuing a show cause notice. I set aside the judgment of the Courts below and find on a substantial question raised that the demand could not be made without proof of theft and involving the plaintiff in an enquiry before such an action is taken by issuing a show cause notice. The demand suffers from a fundamental vice of violation of natural justice and the plaintiff is entitled to decree as prayed for. 6. Learned counsel appearing on behalf of the respondent points out that there had been a disconnection effected and the penalty was also recovered. The plaintiff is entitled to restitution of the amount which was collected and having regard to the fact that the matter relates to a demand made in the year 1983 and the likelihood of proof of such theft by production of any material would not become possible at this length of time, I also hold that no further action would be possible at this length of time by reopening of issue what is already concluded through this judgment. The plaintiff will be entitled to restitution for money collected only in accordance with law. 7. The second appeal is allowed. No costs. ------------------